Agustin Ortega-Lopez v. Loretta E. Lynch
2016 U.S. App. LEXIS 15442
| 9th Cir. | 2016Background
- Ortega-Lopez, a Mexican national present in the U.S. since 1992, pled guilty in 2008 to a misdemeanor for participating in cockfighting under 7 U.S.C. § 2156(a)(1); he received one year probation and has no other convictions.
- DHS initiated removal proceedings alleging he was an alien present without admission; Ortega-Lopez sought cancellation of removal under INA § 240A(b).
- The Immigration Judge found the cockfighting conviction was a categorical crime involving moral turpitude (CIMT) and denied cancellation of removal.
- The Board of Immigration Appeals affirmed in a published decision, applying the categorical approach and reasoning that animal fighting is inherently base, invoking societal condemnation and the fact that all 50 states outlawed it.
- The Ninth Circuit granted Ortega-Lopez’s petition for review, holding the BIA’s analysis insufficient and remanding for the BIA to consider whether cockfighting fits established CIMT categories (especially the non-fraud category addressing intent to harm, actual harm, or protected-class victims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a misdemeanor cockfighting conviction is a categorical CIMT | Ortega-Lopez: conviction is not a CIMT because the offense targets animals, not the types of harm or protected victims that define non-fraud CIMTs | Government: cockfighting is inherently vile/depraved and societal condemnation (criminalization everywhere) shows it is a CIMT | Court: Remanded — BIA’s reasoning was inadequate; must address whether crime fits non-fraud CIMT criteria (intent to harm, actual injury, or protected class) |
| Whether universal state prohibition alone establishes moral turpitude | Ortega-Lopez: statutory prohibition alone is insufficient to prove moral turpitude | Government: sweeping prohibitions reflect moral condemnation, supporting CIMT finding | Held: Insufficient — criminalization everywhere does not automatically make an offense a CIMT; more analysis required |
| Proper analytical framework for CIMT determinations | Ortega-Lopez: BIA must apply Ninth Circuit precedents (e.g., Nunez factors) and explain fit | Government: relied on categorical approach and societal condemnation without addressing Nunez criteria | Held: BIA failed to address Ninth Circuit’s non-fraud CIMT factors; remand required for consideration |
| Deference to BIA published determinations | Ortega-Lopez: BIA must justify its conclusion with statutory interpretation/reasoning | Government: published BIA decision should receive Chevron deference | Held: Court will afford Chevron deference to a well-reasoned published BIA finding, but here BIA’s reasoning was inadequate so remand is appropriate |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for comparing statutes to generic offenses)
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (non-fraud CIMTs typically involve intent to harm, actual harm, or protected-class victims)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (BIA compares statute to generic definition of moral turpitude)
- Mendoza v. Holder, 623 F.3d 1299 (9th Cir. 2010) (deference to BIA published determinations identifying specified conduct as CIMT)
- Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (CIMT categories: fraud and grave baseness/depravity)
- Navarro-Lopez v. Holder, 503 F.3d 1063 (9th Cir. 2007) (overbroad definitions of moral turpitude are improper)